Judge in Kansas declines to lift stay of Army execution

TOPEKA, Kan. | A federal district judge in Kansas declined on Friday to grant the government's request to lift a stay of execution for an Army soldier convicted of murder and rapes.

Judge Richard Rogers' ruling lets stand his order from Nov. 26 halting the execution of Ronald A. Gray, who was convicted of the crimes in 1988 while stationed at Fort Bragg, N.C. Gray is being housed at the U.S. Disciplinary Barracks at Fort Leavenworth and was scheduled to die by lethal injection on Dec. 10 at a federal facility in Terre Haute, Ind.

Rogers said the fact this would be the first military execution since 1961, among other circumstances, merited further review. Justice Department attorneys argued that Gray had waited too long to file his appeal, noting the U.S. Supreme Court had denied his request for review in 2001.

However, Gray's attorney said they couldn't file additional appeals until the death order had been signed. The military presented Gray's case to President George W. Bush in 2003, but it wasn't until this July that the execution order was signed. Army Secretary Pete Geren set the date and place of execution in August.

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Gray, 43, was convicted and sentenced to die in military court in 1988 for two murders and three rapes in the Fayetteville, N.C., area. He pleaded guilty in civilian courts to two separate murders and five separate rapes and was sentenced to three consecutive and five concurrent life prison terms.

Gray has appealed his case through the Army Court of Criminal Appeals (then known as the U.S. Army Court of Military Review) and the Court of Appeals for the Armed Services.

Under law, Gray can make one more request for review in federal court or ask Bush to reconsider. Rogers said despite earlier rulings, Gray was entitled to a final appeal, regardless of the validity of his case.

"While it is impossible to assess the likelihood that (the) petitioner will succeed on the merits at this point, the court takes judicial notice both of the constitutional claims presented in the United States Supreme Court and the position of this matter as the first case since 1961 in which an execution pursuant to a military death sentence has been scheduled," Rogers wrote.

No other court dates were scheduled.

Only 10 members of the military have been executed since 1951 when the Uniform Code of Military Justice, the military's modern-day legal system, was enacted.

President Dwight Eisenhower was the last president to approve a military execution, for John Bennett, who was hanged in 1961 for raping and trying to kill an 11-year-old Austrian girl.

On Feb. 12, 1962, President John F. Kennedy commuted the death sentence of Jimmy Henderson, a Navy seaman, to confinement for life.

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